And found in this article is the most humorous statement of the week:
Garfield County Attorney Wallace Lee, who led the prosecution against Barnes, said he often hears complaints that prosecutors "stack" charges against defendants as a way to coerce them into accepting plea agreements.
"I honestly don't think that's a valid claim," Lee said. "The prosecutors that I know and have dealt with would charge the maximum that they think they could prove, but I don't think they would charge it just as a means of getting a plea bargain."
Naw, there's not a courtroom in the country where people walk in with 6 felony charges and go away with 2 or 3. That just couldn't happen almost every day in almost every courtroom, in every county, in every State, could it?
Now that's a pretty slick way to pass the buck. We all know that the Church will err on the side of life. Why ask? You may be informed by the Church's position but you don't need to confer with it to know what its position is on this matter.
(3) An officer was accused of participating in a scam by confidential informants wherein evidence was planted/fabricated to get money for information. The informants testified for the prosecution and the federal prosecutor summed up by saying, "Either all the victims are lying, or the defendant lied."
The jury decided that all the victims lied and found the officer not guilty on all counts. Apparently, this was followed by loud protestations by Hispanic rights groups who claimed it was a decision which chose the officer over an ethnic group. Of course, one suspects that Officer De La Paz might, just maybe, perhaps be a member of that same ethnic group.
(4) Tired of police coming into your neighborhood and arresting people for DIP? Well, you could always engage in the Guatemalan solution: burn the police station down.
Maybe that's why my local police force is in a concrete building.
The memo suggests administrators call in no more than 50 jurors for death penalty cases and no more than 30 for life felony trials. . . [D]eath penalty cases normally require more than 100 jurors and life felony trials commonly use 60 jurors.
(3) In Alabama, where jury expenses are "$3 million of the [judicial] system's more than $140 budget," the government is trying to make up its budget shortfall by cutting $1 million from juries and $11 million from the rest of the system. That's a 33% cut from the jury system and a 8% cut for the rest of the system. Does this disturb anyone other than me?
Well, as anyone who has been reading this blawg for a while knows, if I have a day with nothing to do the blawg tends to get rewritten. I switched from black to white because I'm not sure the black worked well on some LCD monitors. Unfortunately, the Blantons masthead just didn't fit so I went back to a simpler header.
Everything has been checked on Opera, Netscape, Mozilla Firebird, and Explorer and it all seems to work (it looks different in each but works). The only problem I noticed was that Explorer refused to show one of the pictures of my office in Tuesday's post. If anyone is truly interested it does show up in each of the other three browsers mentioned above.
(1) Despite the usual slew of federal witnesses willing to say anything to keep from spending a gazillion years in jail and a notation that "Sc" was working at the marijuana farm, a jury finds David "Scott" Miller not guilty.
I think that is ill-conceived reasoning. Clearly, this case is beyond what the legislative intent of the statute; this was not part of the war on terrorism. Nothing which occurs in this case is going to effect the actions of the various terrorist groups which operate around the globe. I'm not saying the law is not applicable, just that it isn't in any way a part of the war on terrorism. He should be talking about how this case falls clearly within the bounds of the statute and is a triumph of the legislatures foresight in writing a statute which can be properly applied in all situations which call for its application (hopefully - being a politician - he could say it in a way that makes for a better soundbite).
(4) Apparently, the death sentence is not reducing the desire of prosecutors in other jurisdictions to kill Muhammad. Much of this is probably just posturing anyway. Virginia will kill him before giving him up to other jurisdictions. And how many of them can actually justify the cost of a trial for someone who is going to be killed somewhere else anyway?
The reason I hate the DUI laws - they are not subject to reason.
This guy did the right thing. Rather than driving home drunk (and most likely not getting caught), he went to sleep in his car and for that rational act the State of New Hampshire found him guilty of driving under the influence. And before anyone out there starts thinking to himself, "That can't happen in my State," I suggest that you check out your State's laws because it most likely already does. These laws and their enforcement in this manner are more a witch hunt than anything else - they constantly try to make the use of less and less alcohol more and more illegal (even in absolutely ridiculous cases such as this).
I finally got around to fixing the problem which has plagued this site for a while now. The links to individual posts are working. All I had to do was change out the entire blogger code, remove bstats, and take out all the blogmatrix stuff. But it works now (at least on my machine).
Whether the braggadocio of a teenager, the fatalism of a captured suspect who allegedly left heaps of forensic evidence in his wake, or simply the unvarnished truth as spoken by a pathological and unapologetic killer, Malvo's own words came back to damn him here yesterday.
Those of you who have been reading this blawg for a while will remember me confidently posting that this sort of thing could not happen under our system of law (4:15 a.m. 10 April 03 if the link doesn't take you to the exact post). Up to this case I believed it a basic part of due process under the 14th Amendment to require mens rea. And, at a gut level without researching actual case law, I still do. The Court's claim (1) that strict liability could be brought into all criminal charges which are codified by statute and (2) that it does not exist in those criminal laws which did not exist under the common law unless the Legislature specifically includes it is an anathema under our moral system and damn well ought to be under our jurisprudence.
This decision leads to absolutely insane consequences. Ordinarily one has to go pretty far to list a parade of horribles but in this case we need do little more than slightly alter the facts in the case at bar.
In this case the claim was that the lady forgot she had a gun in her bag when she brought it to school leading to her conviction as a felon. It is not too difficult a thing to imagine. It's bad enough that she becomes a felon for forgetting that she had a firearm in her bag but at least she should have known she had it. Under a sort of recklessness theory one still might find grounds for conviction (much as in manslaughter cases). However, as the Justice interpreted it, the gravamen of this statute is not any kind of mental state - not knowledge, nor intent, nor even implied knowledge.
The gravamen of this offense is mere possession. One can foresee the case wherein a student who is scared during a locker inspection or just pissed at the teacher sticks a pistol in her bag when she is not looking. She carries her bag down the hall and opens it in the cafeteria to get money for lunch and there's a pistol sitting in it for the whole world to see. Even if you can prove the student's bad act, that teacher is still 100% guilty under this interpretation.
Stretching further, under this interpretation even necessity is not a defense. Let's suppose the teacher realized she had her pistol with her and locked it in the trunk of her car (which she parked off campus). Then two kids come into the school, shooting other kids, and looking for her. The teacher runs out to her car and in the ensuing gun battle takes cover in the school parking lot so she can hide behind the cars. She had a gun drawn on campus, ("displaying it in a threatening manner") with the intent to defend herself from mortal danger and under the statute that would require a 5 year mandatory prison sentence. Her intent to save her life is totally irrelevant.
But, you say, these cases would never go to trial because the prosecutor would exercise his discretion to not prosecute. To which I reply, in an adversarial system we should never have to rely on the benevolence of one adversary to ensure that the system operates correctly. Not that I think the prosecutors go out of their way to be unfair but they are human too, as capable of flaws and failings as the rest of us. Hopefully, prosecutors would not pursue a case in the scenarios above. However, lest we forget, under the facts as explained in the decision some prosecutor had to decide that it was a good idea to prosecute a teacher for forgetting about the gun and bringing it to school by accident.
Let's go back to the planted gun scenario. What happens if the prosecutor is up for election for three months from now, is in a tight race, and heavy political pressure is being put upon him to prosecute by a local church leader who is all over him for taking the side of a Catholic teacher over a Lutheran student (and 45% of his county are devout Lutherans)? What happens if the prosecutor is still holding a grudge from when the teacher's boyfriend beat him up in high school for asking her out? What happens if the prosecutor knows that this teacher's father and uncle are big time drug distributors and assumes the gun is hers because she must be in the business too (no matter what the kid - a small time dealer with ties to her uncle himself - says). Heck, what happens if the prosecutor just doesn't know whether the teacher had the gun planted on her or not and thinks he should prosecute if he is unsure?
What happens? She is convicted. Period. The Virginia Supreme Court has basically said she cannot defend herself once possession is shown. She has a permanent stain on her life for something she did not purposefully do and had no knowledge of doing. We are all (theoretically) stained for allowing such a thing to happen to her and we are all (already) stained for allowing such an interpretation under our system of "justice."
I agree with this: "The problem starts with the shamefully low fees the state pays lawyers appointed to defend the accused who cannot afford an attorney."
I strongly disagree with this: "The low fees offer sparse incentive for lawyers to launch a thorough defense, and they may be inclined to encourage a client who is presumed innocent to plead guilty."
I earn the majority of my money from court appointed Defendants. I don't make enough money to keep a full time secretary (I'm in the process of looking for a part time) which means that there is almost never an actual person at my office and that my contacts with my clients and their families are minimal. Often they are not happy about this and I cannot blame them1.
I have never, ever made a decision about how to proceed on a case based on a concern that I will not make money if my client pleads not guilty. I have tried a number of jury trials where my client is charged with a single felony so that the entire fee is capped at $395 and spent well over 10 hours (at a theoretical State mandated rate of $90 a hour) on the case. And I've also tried at least one misdeameanor jury trial which, if I remember right, was capped at $148.
Now, with that said, I have to admit that if the majority of my clients decided to fight their cases - despite whatever evidence or deal offered by the prosecutor - I would go broke very quickly. I'd also probably start spending a lot of time in jail on contempt charges as the 2 to 5 cases I have on most days I go to court started overlapping and causing me to miss cases.
What is never addressed, and won't be on this go round either, is the shamefully low amount of money paid for court appointed lawyers on appeals. This can be an incredibly time intensive process and the caps are amazingly low. If I only worked the amount of time allotted by payment for writing the petition alone ($400 for court of appeals; $200 for the supreme court) many of my petitions would not even make it to paper; they would stop before research was completed. Heck, I don't know that I could really write a decent Ander's brief in the amount of time that is allotted for the supreme court.
1 Actually, since I sit in my office each and every Friday from 2-5 pm for the open office hours I tell all my clients about (and announce on my answering machine message) and get about one client every three weeks dropping in, I guess I could. Still, I'm certain that someone actually scheduling appointments for me would work better.
Personally, the only way I think a "guilty but insane" finding might be correct is if it is a sort of reverse "voluntary intoxication" theory. If it can be proven that you were previously diagnosed and treated for whatever condition but did not continue treatment (something that happens with a number of my clients) then you could be held responsible for your actions. But other than that I just can't see it.
(1) The parents of a murdered teenager blurted out an emphatic “Yes!” on Wednesday as a judge read a jury's recommendation that their daughter's killer die by lethal injection.
(2) As his DNA sample was discussed, in relation to the road rage incident he was charged with, his anger boiled over as he shouted: "Your police boys framed me for that s***." At that point Waite's mother Iona stood up and started yelling at her son to be quiet.
Mr Justice Hughes agreed with Mrs Waite's sentiment, but not the way she had expressed herself so vocally, and demanded order in the court.
By this time Waite's family and friends were finding it difficult to remain quiet and were virtually having a conversation with the murderer who sat weeping in the dock.
As he left for a life behind bars Waite shouted one last outburst to the court: "The lot of you will suffer."
As his family left the court room, under police supervision, Waite's brother Lincoln shouted abuse at the jury before Mrs Waite pointed at and harangued Rita Dixon.
(3) The judge should have declared a mistrial in this case:
(4) The defendant's mother, Helen Smith, collapsed moments after the verdict was read. "No, no, no," she moaned.
Other relatives left the courtroom in tears.
Deputies helped Helen Smith to her feet and were escorting her from the courtroom when she began yelling.
"Missy, you know Danyel took care of that baby better than you!" she bellowed. Missy is the nickname of Marsha Collins, the child's mother. Helen Smith then yelled a threat to Collins, and was surrounded by deputies.
(6) WOW. In California there is no finality in your sentence if you are convicted. Apparently, if you plot murders and the prosecutor doesn't like the sentence you get he can appeal a legal matter and - if he wins - get you a more severe sentence. Yeah, I know the feds do that too but this is the first State I've seen play ping-pong with people like this until it gets the "correct" sentence.
(3) The lessen here? If you are an officer, don't take a long lunch break or you could get convicted of a crime.
This is ridiculous, especially since they traced his work day twice and the second time there was no problem. This is the kind of thing you dock somebody's pay over, not send them to jail and ruin their career.
(4) $33 million decision against the LA police and Budget for damaging a surgeon's hands during a stop which never should have happened.
Here's the court I'm off to today (or at least the Circuit Court section - I'm actually off to District Court). If I remember correctly the Circuit Court was built in the 1890's. The mound topped with a monument to the left side of the picture is the tribute to those who died in the War of Northern Aggression. And no, I've never heard the bell rung for any reason.
Aesthetically, this is one of the best courthouses around. It doesn't have that rustic feel that a lot of county courthouses have. I really like the way it's laid out inside too but unfortunately, I don't have any pictures.
For those of you from Virginia "parole" is this thing they have in other States defined as "a conditional release of a prisoner serving an indeterminate or unexpired sentence." There's a rumor out there that we used to have it too but it was supposed to be back in the Stone Age before I started practicing law.
Not sure I understand this exactly but apparently the Brit parliment has voted to give up jury trials in fraud cases if both houses of parliment pass a bill allowing the giving up of jury trials in fraud cases. ??????
Huh? This and the claptrap which follows it read like pure coverup that it is. Who calls a witness like this to a "public" grand jury unless he is trying to make excuses to the public for not prosecuting the officers?
Manteca Officers Steve Harris and Sam Gallego . . . burst into a Ripon residence without a warrant, handcuffed resident James Walton and, after he made a sarcastic comment, threw him on his bed and threatened: "We could kill you right here."
Statements like that drive me nuts. How do you get a statistic like that? There is no way that I can think of to accurately gather that statistic with self reporting and the actual legal definition of rape (not the stuff they were pushing at us when I was in college). It sounds like something law enforcement and interest groups put forth to win a point and don't really worry too much about its accuracy.
And yes - before the nasty e-mails flow in - I do realize that rape is perhaps the most awful crime out there (maybe second only to murder). I'm not arguing that. There is a difference between arguing a crime itself and arguing things said which do not relate to a specific crime but are broad generalizations.
Why? Why do prosecutors do this to their own cases? Over and over again in cases where they just don't need to they will call terribly self interested witnesses who have been bought off by lessened sentences or dropped charges or whatever and the guy will harm their case. I doubt it will change the result here too much but I've seen it devastate closer cases.
BTW, the article above also describes the escape attempt (which was more than just flooding the cell).
Testimony yesterday included the victim's husband, the FBI agent who dealt with Malvo in the beginning, and the man who found the two men and turned them into the police. Then the prosecutor tried to introduce the 911 tape of the victim's husband calling immediately after his wife was shot but Mr. Cooley got it excluded because it had little value towards proving the charge and was mainly intended to prejudice the jury:
You've got to be kidding! Anybody who knows anything about jails/prisons knows that prisoners do two things when they are bored/upset: they burn things or try to flood their cell. Nobody has any kind of actual expectation that this will accomplish anything (except getting them thrown in solitary confinement).
(4) Security is on high alert during the trial. Not sure exactly why. It's not as though Malvo was in Al-Qaida and might have people around who want to free him or (more likely) make martyrs of themselves during his trial.
Here's another discussion of the fact that the prosecutor did not disclose certain Brady evidence (which it probably didn't know about). I discussed this some previously here. I have to take issue with this statement:
Richard Friedman, a University of Michigan law professor who is an expert on evidence, said the Brady doctrine "is not based on the idea that prosecutors should be doing the defense's job. I don't think anybody else in the government would have the responsibility to communicate what they knew about this witness. . . . It's a big government."
That's not a proper reply to non-disclosure of Brady material. As I stated in my last post, one of the obvious purposes of punishing the prosecution for non-disclosure is to prevent willful blindness on the part of the prosecutor. However, I don't think that is the only evil which must be addressed in enforcing Brady. There is also the ever present danger that police will just not tell the prosecutor everything. Like I said in my last post, who thinks that a witness (or his supervisors) will come to the prosecutor and tell him that he has been accused of being a racist who skews evidence and keeps a lab so messy that it screws up results? If there is no reason to disclose they won't.
Now, in cases such as this where the Defense probably has an investigator or two and is able to find this information it may not matter too much (although the article is not clear over whether this was found by the Defense or was a late disclosure by the prosecution). However, in the vast majority of the cases out there the only "investigator" is an overworked defense attorney and there is no way that Brady material will be discovered unless both the officers and the prosecution act in good faith and hand it over. Most of the time I'm sure they do and I'm sure that even when Brady material is not disclosed it is usually because they don't realize it. However, the only way to ensure that it is handed over is to punish the prosecution in those very few cases where it can be proven they did not.
Will it happen in this case? I'd bet good money that upon appeal it will be found to be "harmless error" by the appellate court. And it very well may be in this case but if its not punished here when will it be punished? The most likely answer is never.
Actually, thinking this over, it might be extremely useful to the Defense to call this guy up during sentencing (if the judge will allow it) and expose all this. It might be a way to keep Muhammad from being killed.
What, you ask, does that have to do with criminal law? Absolutely nothing but it's the first time I've been able to even admit I am a Bengals fan for years. So, you'll just have to live with it for a couple seconds.
(3) The U.S., the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen are the countries on record as having executed minors since 1990 and the U.S. leads the pack with 17. And, of course, Texas leads the way.
(3) This posting over at I respectfully dissent talks about the contempt power inherent in the judiciary. This caught my eye because I am currently working on an appeal of a contempt charge from Juvenile and Domestic Court to the Circuit Court (everything in Virginian courts not of record can be appealed to a Circuit Court). My client was sentenced to 10 days in jail (the max summary contempt punishment in Virginia) and appealed. I must admit this was the first time I have dealt with one of these so I had to hit the books. I knew that the judge could not be called to testify under the laws of Virginia so I was wondering how they would prove it. I quickly learned that under the laws of Virginia all the proof required is for the lower court judge to write a letter to the higher court judge saying why she convicted the Defendant of contempt - so much for the right to cross examine the complaining witness. Who cares about that musty old Constitution anyway? But WAIT, there's more . . . You are also forbidden a jury trial. See Baugh v. Commonwealth. Because, who would want a jury to intervene when one judge is given a letter by a colleague in the same circuit and is expected to weigh that against the word of the Defendant? Arrrgggg!!!
(4) Curmudgeonly Clerk was guest blogging over at Crescat Sententia and had a couple of posts which caught my eye primarily because I spent 6 years as an interrogator in the U.S. Army. Not going to comment on the charges because I haven't been following the story he's commenting on so I don't know all the facts but you can check it out here and also here.
(6) What's the lesson of this post over at The Legal Reader? If you are going to break the law make dang sure that you are the worst of all the bad guys and that you have lots and lots of underlings whom you can offer up as sacrifices to the federal prosecutor. That way you can get a sweetheart deal and avoid the punishment you deserve by transferring it to people who deserve it less than you do.
Although, I guess that technically, under the common law definition1, it's not a burglary but a B&E and a grand larceny.
1Breaking and entering the dwelling place of another at night with the intent to commit a felony therein. I want to thank Prof. Groot at W&L for making sure all his Criminal Law students memorized the common law definition of various crimes. I wasn't in his class - my Criminal Law professor spent almost the entire semester on homocide and the model penal code (which is oh so useful when I'm actually in a criminal court) - however, my roommate (Brandon Marzo, who's now working for Big Brother in Atlanta) did and he would say the definitions over and over and over again so that even someone as dull-witted as me eventually remembered a few of them.
In Virginia fees are assessed against indigent defendants if they lose their cases. While that does infringe somewhat on their right to counsel at least it puts in place an equitable shifting of the burden of the cost to the accuser if he cannot (or chooses not to) prove the charge which has been brought.
Something's really fishy when you tell the police that someone attacked you, tied you up and left you under the floor boards of his apartment for more than a day before you escaped and the prosecutor finds you so incredible that he will not take the case to trial.
Attempt to start a set of events during which you plan "to hijack a vehicle, execute three classmates and go off on a shooting spree targeting random people in Oaklyn, a Philadelphia suburb" and you will get 4 years in juvenile detention.
Opening salvos were exchanged in the case as both sides laid out thier cases in opening arguments. Prosecutor Horan talked about how Malvo was the shooter in a sniper team and a "smart, clever killer." Craig Cooley countered:
As this article points out, the prosecution seems to be relying on an assertion that it was all about extorting $10 million thru terror while Mr. Cooley is telling the more understandable story of a young man under the control of a manipulative older man and acting in a manner meant to please him. And, from the various news reports, Mr. Cooley seems to be telling his story better. Still, the case is so stacked in the prosecution's favor that the prosecutor has a fairly large margin for error. If Mr. Cooley saves this kid's life it will the achievement of a lifetime.
You assume the prosecutor didn't know but that's not enough to absolve him from responsibility; prosecutors are held to a higher standard of assumed "knowledge" when it comes to their agents to discourage willful blindness. Often it's not the prosecutor's fault (how many experts or agents are going to pull the prosecutor aside and say "Just thought you should know, I'm a racist jerk"?) but it is a habeus waiting to happen.
Here's the courthouse I'm off to today. Now, that's a fine county courthouse: nice solid doric columns and a brick facade. Before Amelia got hit by a group of tornadoes this year it had a beautiful park out front with antebellum trees and the ubiquitous monument to those killed in the War of Northern Aggression. Now there are a couple of the older trees left out front and a lot of space where the old trees were uprooted has been filled in and covered with straw to encourage grass to grow. New trees have been planted too but they're sapplings so they're basically useless for the next 10-20 years. Still, it kinda gives you the feeling that Amelia is saying that it'll be around for the long run.
Even though it is CrimLaw 101 that the prosecution does not have to prove motive, Malvo's lawyers are expected to concentrate on the question of "Why" in order to show Malvo was under Muhammad's sway. Many do not believe this will work (at least in the guilt/innocence phase):
The judge refused to strike the prosecutor's evidence on either count of capital murder (as to its ability to prove a capital crime). My question is, after the jury sanctions Virginia's killing of Muhammad will the Court of Appeals have the guts to find him wrong on one and right on the other and - if the jury sentences him to death on both - will it just rule it harmless error?
Now the jurors know that indoctrination can render a person insane if they decide it renders him insane. They may also have an inkling of the disparity in representation between the lawyers for Malvo and the lawyer for the Commonwealth. Why these people didn't go straight to Von Schuch when they heard Cooley was representing Malvo is beyond me.
SW Va Law points to this article about police waiting in the parking lot to catch people who are convicted, have their licenses suspended, and then go back out to their cars to drive home.
And what's so dang clever about that? Anyone who's been at any courthouse in Virginia a couple of times can tell you that people drive away from court without licenses. Sometimes it's because their license is taken from them while they are in court and they are just going to drive home. However, since Virginia takes your driver's license for everything under the sun1 and then holds it ransom to outrageous fees2, there are all sorts of people who must drive despite the fact that their licenses have been taken. Picking them up after they have been forced to come to court is like shooting fish in a barrel. It may be legal; it may be a great way to produce income for the city/county; It's not exactly fair; and it doesn't serve justice by protecting us from dangerous criminals. Quite often, it just punishes those who are down on their luck for being down on their luck.
1 Not paying court fines, having car insurance lapse, getting caught with alcohol under 21, etc.
2 Don't let your insurance lapse - you will have to pay for insurance plus a $500 reinstatement fee.
-------------------- DURST NOT GUILTY --------------------
Shot a man, chopped him up, hid the parts, cleaned the area up almost spotlessly, rehid the head, fled the area, hid out for six weeks as a homeless guy, caught because he shoplifted, and found not guilty of murder.
The prosecution has ended its case in chief against Muhammad. Now it has to survive the motion to strike the evidence. Personally, I think one of the capital charges should be struck because of the triggerman rule but the one under the terrorism theory might have legs. Yes, its outside the scope of the Legislature's intent but everything after the letter was intended to create terror as part of a blackmail scheme. I can't remember off the top of my head whether the one he's officially charged with happened before or after the letter. Maybe one of you kind readers would be able to inform me. If not I'll try to look it up tonight and post it tomorrow.
While I think Drug Court is a good program - better by far than most - I wonder about these statistics. Personally I suspect they are somewhat skewed by self-selectors who choose to do some jail/prison time rather than going into the program. Still, the study does point to a good trend and I don't think self-selectors could skew the results that much.
(7) Prosecutors in the News: (a) A grand jury chose not to press charges that a prosecutor knowingly used false scientific evidence to convict a man of murder. (b) A prosecutor is sued after evidence was withheld from the Defendant leading to his release 25 years later and the prosecutor holds a press conference to announce he will not retry the matter but has no doubt the Defendant is guilty.
The weirdest searches which popped up were "japanes bondage" (misspelling was in the search) and "what the church thinks about Marijuana as catholics." I can understand how the latter might be directed to me but the former? Admittedly, I have what I've seen referred to on a site (can't remember which one) run by an Asian American as "that strange caucasion guy hangup on Oriental girls."1 However, I cannot ever remember addressing the particular subject of that search at anytime. Maybe one of you out there has read my blog more closely than I and correct me if this is a misperception.
1 Among the various "hangups" I have for attractive members of the distaff half of our world.
An article setting up a dichotomy wherein lawyers may be able to strike a person for being religious but not for being part of a particular religion.
I don't buy it. Are you religious necessarily carries a second question - what religion? Without the second question the first is useless. If the stereotypes you carry in your head tell you that an Episcopalian will oppose the death penalty while a Southern Baptist will support it there is no use in knowing the fact that someone is religious rather than merely a nominative member of a religion or particular denomination.
The second question may be answered by the kind of question I see asked usually during voir dire and have discussed here. This question implies the "What is your religion" question because it questions the person about whether he follows the tenets of a particular religion. Another way of answering the question might be from knowing what the demographics are so that you know people who live North of 2d Street are Mormons and South are Quakers. Yet another is to rely on names; it may not always follow but you can probably infer that Muhammad ibn Ahmad is not Catholic and that Mike O'Sullivan isn't Muslim.
Additionally, even if the fact that someone is "religious" is something which a State actor might use without other factors to deny a person his right to do his civic duty it would still seem to be "prohibiting the free exercise [of religion]." It's not a question of association - it's a question of exercise.
Sentenced for having sex in a cathedral as part of a radio prank. 5 days community service seems a little light however, one suspects that she may have to answer for this again in a place where double jeopardy might not help her too much.
Imagine the following: you have spent months - maybe years - preparing to defend a client accused of murder. Your defense is based on mental defect; a well-respected psychiatrist has reviewed all the client's prior medical records, interviewed him a number of times and is going to testify in a Sacramento courtroom that your client has such serious mental problems that he cannot be held responsible for his actions. Then, on the East Coast 9-11 occurs and on the West Coast your psychiatrist reacts like this:
[T]he most novel response [to 9-11] came in a fax sent within hours after the attacks by a psychiatrist ... by the name of S. Miles Estner. He was under subpoena to testify in a murder case as a defense witness.
The defendant, Jeffrey Kiehm, a twenty-year-old man with a history of mental instability [killed his drug dealer to see if he could kill someone in a planned bank robbery].
"I cannot and will not be available to this court in the matter of Jeffrey Kiehn for a period of at least several weeks," Estner said in a fax sent to Judge Jimmy Long within hours of the September 11 attacks. "It goes almost without saying that we are in a National Crisis and that my family and friends on the East Coast look to me for guidance and need me to be there right now.
"I was born and raised in Pittsburg, Pennsylvania, where my elderly father still resides, alone, a handicapped widower, and where I attended Medical School. As you must know, one of the terrorist plane crashes occurred nearby. He needs my help more than any criminal defendant or criminal defense attorney, despite their interests.
"In addition a substantial portion of my medical education and training were in New York City and Washington, D.C., where I also have family and friends to whom I must and will attend.
"In the hopes that you will understand my predicament, I hope that the Kiehm trial can be delayed or - retried, and, frankly, [the defense attorney's] unprofessional and illegal attempts to compel my appearance, despite my personal tragedies, have soured me on this matter altogether."
"Furthermore, it seems clear that there will be no air traffic to allow my travel from this distant location. I am not sure the roads leading to Sacramento from [San Luis Obispo] are accessible.
"I apologize for any inconvenience to the Court, the Jury, or the Defendant, with his right to speedy trial. As for [the defense lawyer] he has been so unsympathetic to my predicament that I plan and hope to have no further dealings with him.
"Thank you in advance for your appreciation of my predicament and conflicts in these regards. I hope that Justice will be served and apologize for my inability to participate in it at this time."
Of course, the defense attorney tried to salvage this disaster but . . .
"I was informed by my office that Dr. Estner was refusing to appear in court because of fear that the courthouse would be the target of terrorists," [the defense attorney] said in his own fax to the judge and prosecutor. "When I learned that, I requested that my partner, Amy Morton, call Dr. Estner and explain to him that he had to be in court.
"Dr. Estner told her that he would not appear in court and he repeated over and over, 'It's not happening.' When Ms. Morton asked him why, he said he wouldn't travel until things were settled down. He was described as whispering as he told her roads were closed and 'it's not happening.' In spite of telling him how important his testimony would be, he continued [about] refusing to appear and he sounded extremely distressed."
[The attorney] told the judge he then called Dr. Estner himself on his cell phone and at his home and got the following message from the doctor's message service: "Hello, it's Dr. Estner. It's approximately eight A.M. Tuesday, September eleventh. I believe the country is in a state of crisis. I will not be receiving or returning calls until the matters have been clarified. Thank you so much. Bye-bye."
Not too surprisingly, the judge allowed the Defense a mistrial and let it replace this nut case.
The Minnesota Chiefs of Police Association set up a "private" big brother network (never legislatively authorized) which has now been taken over by the State. As the article points out, it does not gather information, it merely transfers information from the department which gathers it to whichever department wants it.
Three disturbing things about this:
(1) It is not forwarding only information about convictions or charges, it is sending information about acts a department thought were "suspicious."
(2) It totally avoided legislative approval. This alone should be enough to shut it down. Setting it up as a "private network" and then "renting" it back to the government which is the only entity with a legitimate use for it is shady. The fact that it was done by those who fall under the executive branch of a government without legislative oversight smells really funny. One suspects that the police thought they couldn't get the funding and therefore went this route.
(3) A citizen cannot get a copy of the information about him which is being disseminated thru the network. The government may have the ability, the need, and maybe even the right to gather information about people but, absent a very compelling reason - which it should be the burden of the government to prove - the citizen should have access to his information as it is available to the government. And telling someone that a township 200 miles away has entered some info on him is pretty much the same as denying him the info; no self-respecting police force will give that information over the phone/fax and going in person the three or four times it might take (if you are lucky) to shake the information loose is not practical.
The judge has entered an order for the mother (or father) to desert by holding the children hostage. You can clean it up any way you like but that's what was done. Shameful.
I don't have any problems with the Army stopping her pay and booting her out for not reporting back for duty. I don't have too much of a problem with her not returning because she had to stay to keep the State from acting to remove the children from her family (note that the husband went back). And I've seen enough of Juvenile and Domestic Court to expect people to try to use situation like this to their advantage in their wars over custody. However, the judge is supposed to stand above the lunacy. The hackneyed old line about "best interests of the child" just doesn't cut it in this case. Here we have two parents providing excellent examples by doing their civic duty - serving their country when called. The extended family (grandmother) has stepped up to care for the children. So the judge orders a desertion. Yeah, having a mother who abandons her duty and becomes a criminal is really in the best interest of those children.
Where are the federal prosecutors? Does this not violate some section of federal law? (Sorry - not up on my Soldiers' & Sailors' Act or other similar areas of the law)
Arrgggg!!!! On a primal level this just leaves me boiling.
Who can the police arrest? Well, the answer locally is everybody. They will arrest every single person in the car, charge them all, and let it all get sorted out in court. Meanwhile your client (who can't make bond) sits in jail for about 6 months waiting for his trial date.
So now I'm supposed to worry about what popular song I might whistle, hum, or sing while I'm in the courthouse hall? Heck, most of the time that's determined by what the last song I heard on the radio was, not by any conscious thought.
Of course, if I was one of you good folks out there, I'd probably just be worried about hearing me sing period.
Oh, sure, I spend my time trying to put a good blawg out containing decent posts and (hopefully) at least a modicum of quality and what spikes my incoming hits so that I'm probably going to get twice the normal amount?
Southern Appeal and Crescat Sententia notice that I have Blanton's Single Barrel Kentucky Bourbon on my masthead (I'm also getting a bunch of hits from In Re but I haven't figured that one out yet).
Oh well, I guess I'll just sit back and enjoy it - maybe I'll even crack that bottle open.
(12) Malvo case: (a) Introducing a police report? What exception allows that? (b) Using the fact that no untainted petit jury could have been found (thus the change of venue) Malvo's attorneys are trying to get the terrorism charge dropped because the grand jury must have been tainted (having been done before the change of venue). Now that's a pretty sharp argument. Gotta admit, from what I've seen so far, I'm impressed with Malvo's representation; they don't seem to be missing anything.
In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.